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CASE NO.: Appeal (crl.)  904 of 2007

PETITIONER: Maulana Naseeruddin Mohd. Haneefuddin

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 17/07/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO.  904         OF 2007 (Arising out of SLP (Crl.) No.2882 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Gujarat High Court dismissing the  criminal Appeal filed by the appellant.  The said appeal related  to the rejection of prayer for bail in connection with Crime  Register No.I-6 of 2003 registered with DCB (Crime Branch)  Police Station, Ahmedabad.

3.      Factual position in a nutshell is as follows:         An FIR was lodged on 4.4.2003 with DCB Police Station,  Ahmedabad, alleging that a conspiracy was hatched by Mufti  Sufiyan and Rasulkhan Party at Ahmedabad and Hyderabad  to commit murder of Hindu leaders through boys by imparting  them training in arms in Pakistan. The complaint was filed for  the alleged commission of offences punishable under Sections  120(B), 121, 121(A), 122, 123 of the Indian Penal Code, 1860  (in short ’IPC’) and Sections 25(1) (b),(c), 27 and 29 of the  Arms Act, 1959 (in short ’Arms Act’). Thereafter on 19.4.2003,  in pursuance of report of police Inspector, Mr. M.M. Vaghela,  Sections 3(1)ab, 3(3), 4, 20, 2l(2)b, 22 (3) (a) (b) of Prevention of  Terrorism Act, 2002 (in short ’POTA’) were added. The charge  sheet was filed in POTA Court qua the co-accused on  10.9.2003 wherein 39 accused were shown as arrested and 43  accused as      absconding. Confessional statements (28 in  number) were recorded during the remand period and  statements of 43 witnesses were taken. On 21.1.2004,  supplementary charge sheet was filed showing 8 accused  including 7 absconding accused of first charge sheet as  arrested and 7 new accused were named as wanted and 5  statements under Section 164 of Code of Criminal Procedure,  1973 (in short ’Cr.P.C.’) were recorded and confessional  statements of 8 accused were attached.  The appellant filed  Special Criminal Application No.377 of 2004 in the High Court     for quashing of proceedings which, according to the appellant  is pending till date.  The appellant was released on bail in  another offence at Hyderabad on health ground.  Thereafter on

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30.10.2004 he was arrested in connection with the present  offence by the Gujarat Police.  He was produced before Special  POTA Court on 2.11.2004 and was remanded till 9.11.2004.   Request for further remand was rejected and the appellant  was sent to judicial custody. Charge sheet qua the appellant  was filed in Special POTA Court on 27.1.2005.  The appellant  moved an application for bail being Crl. Misc. Appln. No.762 of  2005.  However, it was rejected by the learned Special (POTA)  Judge, vide order dated 24.5.2005. Questioning the same,  appeal was filed before the High Court.

4.      Before the High Court, it was contended that there is no  evidence against the present appellant except the alleged  confessional statement recorded on 7.11.2004 by the DCP.  The confessional statement, it was contended, is  unsustainable in law and it was neither in the language  known to the appellant nor was it in his hand writing.  The  confessional statement was recorded in Hindi.  In any event,  the confessional statement was retracted by the appellant  which goes to show that the said confessional statement is  concocted with the sole object to involve the appellant falsely  in the offence and hence no reliance should be placed on it.    The appellant never provoked or instigated any youth to go to  Pakistan for Jihad training. The prime accused have not  stated in their confessional statements of having been inspired  by the speeches of the appellant and reference to the appellant  was not done by any witness. During the course of police  custody and remand no incriminating articles were recovered  by the investigating agency.  Serious acts in the aftermath of  Godhra was done by the Rauf and not by the appellant and in  the absence of any prima facie material there was no basis for  keeping him in custody.  

5.      The stand of the State on the other hand was that there  is a confessional statement of the accused recorded under  Section 32 of POTA. It is the appellant who inspired young  boys to take Jihad training in Pakistan.  There is nothing on  record to indicate that there was any coercion for giving the  confessional statement.  The belated retraction is nothing but  afterthought. It was not done within the time stipulated and  therefore the appellant is not entitled to be released on bail.

6.      The High Court found that the learned special Court had  elaborately dealt with various aspects of the case relating to  appellant. During the course of investigation confessional  statement was recorded by DCP, an authorized officer under  Section 32 of the POTA which is part of the charge sheet.  The  same was retracted after about 40 days by sending letter to  the Special POTA Court through the jail authorities.   According to the High Court even if the confessional statement  recorded under Section 32 was retracted, same can be  considered as a piece of evidence at the time of deciding the  bail application. Further the retraction was not done within  the stipulated time. The High Court was of the view that the  learned Special Court was justified in refusing the bail  application.

7.      The stands taken before the High Court were reiterated  before this Court.  It was submitted by learned counsel for the  appellant that the FIR relates to the incidents allegedly taking  place between the period from April, 2002 to April, 2003.

8.      In the FIR name of the present appellant-Maulana  Naseeruddin was not indicated.  Charge sheet was filed before  the POTA Court on 10.9.2003, where names of 82 persons

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were indicated; out of them 39 have been arrested and 43 were  stated to be absconders. On 28th October, 2003 confessional  statements were recorded during appellant’s remand and 43  witnesses were examined under Section 164 of the Cr.P.C. The  appellant was arrested in terms of Section 151 Cr.P.C. and  was granted bail in October, 2004. On 21.1.2004 a  supplementary charge sheet was filed.  Appellant’s name was  shown in Column 2 as accused No.40 as an absconded  accused in addition to those who were originally shown as  absconders. The confessional statement was purportedly  recorded on 7.11.2004 in Hindi. In between, several  applications had been filed but there is no mention about the  then so called retraction of confessional statement. On  27.1.2005, additional charge sheet had been filed.

9.      It was further submitted that on retraction confession  cannot be treated as a relevant substantial evidence. Further,  the medical records and documents were not looked into.

10.     Learned counsel for the State on the other hand  submitted that initially there was a petition filed under Section  482 of Cr.P.C. before the Gujarat High Court and one SLP had  also been filed and the same was subsequently withdrawn.    The trial court’s records have been sent back and the trial has  commenced on 18.1.2006.   

11.     It is to be noted that the Special POTA Court had directed  the jail authority to refer to the appellant to Civil Hospital and  on advice of the expert to get him examined and if required,  admit him to the Civil Hospital for the period as may be  prescribed by doctors.  The experts have expressed the view  that he can be treated as an outdoor patient by examining him  at the Civil Hospital.   

12.     It is no doubt true that there is no time statutorily fixed  during which the confessional statement, if any, can be  retracted; but it has to be done within a reasonable time.

13.     Considering the various factual aspects highlighted by  the trial Court and the High Court, we do not think this to be  a fit case where bail can be granted to the appellant.

14.     Order of the learned Special Court, POTA as affirmed by  the High Court cannot be faulted and no interference is called  for.  

15.     Accordingly,  the appeal is dismissed. However, it would  be in the interest of all concerned if the trial is completed  expeditiously.